Thomas Cranmer:  Three Waters and the vexed question of ownership


At the heart of the Three Waters debate is a question that has been contentious since the signing of the Treaty of Waitangi – what does ownership really mean and is it the same as rangatiratanga?

This article is the fifth in a series by Thomas Cranmer, the pseudonym adopted by a legal analyst who has been carefully dissecting the Three Waters legislation. He writes: 

My old Māori Studies lecturer, Dr Ranginui Walker described it as the “abyss of meaning” when considering the English and Māori versions of the, Treaty of Waitangi – newly constructed words that were attempting to encapsulate old, and in some cases, nebulous, concepts. At the heart of the Treaty debate is rangatiratanga, a word which Walker describes in his book ‘Struggle without End’ as:

“… a missionary neologism derived from rangatira (chief), which, with the addition of the suffix tanga, becomes chieftainship. Now the guarantee of chieftainship is in effect a guarantee of sovereignty, because an inseparable component of chieftainship is mana whenua. Without land a chief’s mana and that of his people is negated.”

Fast-forward to 2022 and the debate about ownership centres on New Zealand’s water assets. Whilst it may have been overshadowed by media-focus on co-governance, in truth the real battle is about ownership and the different ways that Māori and non-Māori view that concept.

Minister Mahuta has been clear that Three Waters will not lead to Māori ownership of water. At the first reading of the Water Services Entities Bill in the House Mahuta was unequivocal in her position:

“Councils will collectively own the entities on behalf of their communities within their service area. On the recommendation of the working group, councils will be given shares in the new water service entities, ensuring continued public ownership. Councils will receive shares on a per capita basis: one per 50,000 residents, rounded up. Councils, and councils alone, will own these water entities.”

Outside the debating chamber following the Bill’s introduction Mahuta completely rejected the idea of Māori ownership describing it as a “mistruth in its entirety”. In one sense, of course, the Minister is correct – she can point to section 15(2)(a) of Bill which states in plain terms that the “water services entity is co-owned by the territorial authorities in its service area”.

However, legal experts, most notably Gary Judd KC and Stephen Franks, have been equally clear that the bundle of rights customarily recognised by lawyers and the public as constituting ‘ownership’ has been stripped away from the shares in question. A legal opinion issued to the New Zealand Taxpayers’ Union, states that:

“Councils are expressly denied the rights of possession, control, derivation of benefits, and disposition that are the defining attributes of ownership.”

Judd KC reviewed the opinion and endorsed its reasoning and conclusions, adding:

“When all the lying statements are put together, as your opinion does, the government’s effrontery is breath-taking.”

The opinion concludes that there is

“… no substance in the so-called shareholding

and that

Ministers appear to have cold-bloodedly decided to confuse Councils and ratepayers with false statements.”

And this is where the dichotomy between the English concept of ownership and the Māori concept of rangatiratanga becomes apparent.

Mahuta, of course, is not interested in an English law concept of ownership – if it will make the Councils and the public feel good about themselves, they can have a share certificate to hang somewhere prominent in the Council Chambers. What really counts is rangatiratanga – what Sir Tipene O’Regan defined as “iwi in control of themselves and their assets in their own rohe” – and as far as that is concerned, Mahuta has been ruthless in ensuring that that is given to iwi.

Indeed in the 2021 Cabinet Paper ‘Protecting and Promoting Iwi/Māori Rights and Interests in the New Three Waters Service Delivery Model’, Mahuta is far clearer about this ambition than she was in the House. In the Paper she states:

“An important part of this work has been to ensure recognition of the rights and interests of iwi/Māori in the three waters.

“Water can be a taonga of particular significance and importance to Māori, and the Crown has a duty to protect iwi/Māori rights and interests under the Treaty of Waitangi / Te Tiriti o Waitangi, and existing and subsequent Treaty settlements.

“The Crown has responsibilities under the principles of Te Tiriti to protect such a relationship and allow for an appropriate exercise of tino rangatiratanga alongside kawanatanga. The Crown also has broad responsibilities to protect taonga, the exercise of tino rangatiratanga, and the principles of Te Tiriti.”

The Paper goes on to set out the key proposals that are intended to protect and promote those interests as follows:

  1. statutory recognition of the Treaty of Waitangi and Te Mana o te Wai in legislation;
  2. a mana whenua representative group at the strategic level of the new water services entities exercising greater tino rangatiratanga than the current system allows, which has equal rights to territorial authorities, and a kaupapa Māori selection method for this group;
  3. Te Mana o te Wai statements, which would be issued to the entity by mana whenua, and to which the entity board would be required to respond;
  4. requirements that the board of each entity, collectively, has competence relating to the Treaty of Waitangi, matauranga Māori, tikanga Māori, and te ao Māori;
  5. requirements that the board of each entity includes members with specific expertise in supporting and enabling the exercise of mātauranga Māori and tikanga Māori and kaitiakitanga with respect to the delivery of water services;
  6. requirements that the entities fund and support capability of mana whenua to participate in relation to three waters service delivery.

Minister Mahuta describes these proposals as providing

 “… for increased ability for iwi/Māori to exercise rangatiratanga in relation to the regulation, funding, financing and provision of three waters services.”

The comprehensiveness and scope of the Paper is breath-taking. Where did those bundle of rights normally attached to shares go? They have been quite unapologetically handed to iwi as a full-blooded expression of rangatiratanga.

In my view Judd and Franks are right that there is no substance to the so-called shares and that the Government has confused Councils and the public with their statements.

In truth, the Government is ruthlessly exploiting the “abyss of meaning” referred to by Dr Ranginui Walker and which lies between the concepts of ownership and rangatiratanga.

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